Stokes v. United States of America (INMATE3)

Filing 29

ORDER directing Stokes TO SHOW CAUSE why the new claim of ineffective assistance of counsel contained in his amended 2255 motion "relates back" to his original 2255 motion and should not be dismissed as time-barred pursuant to the one-year limitation period. Show Cause Response due by 6/5/2009. Signed by Honorable Terry F. Moorer on 5/18/2009. (dmn)

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION B O B B Y STOKES, JR., P e titio n e r, v. UNITED STATES OF AMERICA, R e sp o n d e n t. ) ) ) ) ) ) ) ) )

Civil Action No. 2:08cv902-MHT [W O ]

ORDER P u r s u a n t to the orders of this court, the United States has filed a supplemental re sp o n s e (Doc. No. 28) addressing the new claim of ineffective assistance of counsel raised in Stokes's amended 28 U.S.C. § 2255 motion. In its supplemental response, the government a rg u e s that Stokes's new claim is barred by the one-year period of limitation applicable to § 2255 motions.1 Specifically, the government contends that Stokes's new claim this his c o u n se l rendered ineffective assistance by failing to file a requested appeal does not "relate b a c k " to any claims presented in Stokes's original § 2255 motion and is therefore timeb a r r e d , as it was not raised within one year of the date upon which Stokes's conviction b e c a m e final. See Pruitt v. United States, 274 F.3d 1315, 1318-19 (11 th Cir. 2001);

D a v e n p o rt v. United States, 217 F.3d 1341, 1344 (11 th Cir. 2000). The government further m a in tain s that if Stokes's new claim of ineffective assistance of counsel is deemed to "relate

Section 105 of the Antiterrorism and Effective Death Penalty Act ("AEDPA") amended 28 U.S.C. § 2255 to establish a one-year period of limitation for motions filed pursuant to § 2255. The section became effective on April 24, 1996. See Goodman v. United States, 151 F.3d 1335, 1336 (11th Cir. 1998).

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b a c k ," this court should hold an evidentiary hearing on the new claim. T itle 28 U.S.C. § 2255 provides, in pertinent part: A 1-year period of limitation shall apply to a motion under this section. T h e limitation period shall run from the latest of -(1 ) the date on which the judgment of conviction became f in a l; (2 ) the date on which the impediment to making a m o tio n created by governmental action in violation of the C o n s titu tio n or laws of the United States is removed, if the m o v a n t was prevented from making a motion by such g o v e rn m e n ta l action; (3 ) the date on which the right asserted was initially re c o g n ize d by the Supreme Court, if the right has been newly re c o g n ize d by the Supreme Court and made retroactively a p p lic a b le to cases on collateral review; or (4 ) the date on which the facts supporting the claim or c la im s presented could have been discovered through the e x e rc is e of due diligence. S to k e s's original § 2255 motion was timely filed with this court on November 10, 2 0 0 8 . However, any new claim asserted by Stokes after November 26, 2008 (i.e., over one ye a r after Stokes's conviction became final), is deemed untimely under § 2255's one-year p eriod of limitation unless the new claim "relates back" to claims presented in Stokes's o rig in a l § 2255 motion under Fed.R.Civ.P. 15(c). In pertinent part, Rule 15(c) provides that " [ a]n amendment of a pleading relates back to the date of the original pleading when ... the c la im or defense asserted in the amended pleading arose out of the conduct, transaction, or o c c u rre n c e set forth or attempted to be set forth in the original pleading." Fed.R.Civ.P.

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1 5 (c )(2 ). "`Relation back' causes an otherwise untimely claim to be considered timely by tre a tin g it as if it had been filed when the timely claims were filed." Davenport, supra, 217 F .3 d at 1344. I n light of the foregoing, it is ORDERED that on or before June 5, 2009, Stokes shall show cause why the new c la im of ineffective assistance of counsel contained in his amended § 2255 motion "relates b a c k " to his original § 2255 motion and should not be dismissed as time-barred pursuant to th e one-year limitation period. D o n e this 18 th day of May, 2009.

/s/Terry F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE

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